TRADING TERMS AND CONDITIONS OF SALEClassical Wines Pty Limited (ABN 11 067 439 696)
1. Where used, the word “Company” means Classical Wines Pty Limited and the word: “Purchaser” means the person, firm or company named as the applicant on this form.
2. The Purchaser will purchase products from the company upon the following terms and conditions.
3. Verbal statements and representation, which may have been given to the Purchaser, are hereby expressly negated. Any liability by the Company for verbal statements or representations actually given is hereby avoided.
3. The prices charged by the Company as set out in the Company’s applicable price list may be altered and any resulting increase shall be added to the purchase price. Such price or prices quoted for purchases from the company are subject to any increase in the amount of excise duty, sales tax, freight or insurance between the date of order and date of delivery, and any such amount shall be added to the purchase price and be payable by the Purchaser to the Company unless other written agreement negates this.
4. The Purchaser agrees the Company shall give any notices under this Agreement to the address appearing on this Form as the
Business Address and any such notice given to such address shall be deemed given to – • All branches, offices or premises from which the Purchaser conducts its business;
• All subsidiaries or related corporations of the Purchaser who with the consent of the Purchaser and the Company operate the Purchaser’s account.
• The Purchaser on the next business day, after the day of posting
5. Unless alternative arrangements are made in writing between the Company and the Purchaser, the Purchaser must pay for all Goods no later than the end of the month following the date of invoice. In the event that Goods are not paid for, for more than Thirty (30) days after the due date, the Purchaser must pay interest on the amount outstanding at the rate of Two Per Cent (2%) per month for each month payment is overdue.
6. In addition to any lien to which the Company is entitled, the Company shall in the event of the Purchaser’s insolvency, bankruptcy or winding up, be entitled to a general lien on all property or goods belonging to the Purchaser in the Company’s possession (although such goods or some of them have been paid for) for the unpaid price of any other goods sold and delivered to the Purchaser under this or any other contract.
7. The Company shall not be responsible, nor accept any liability for any claim for loss of profit caused by delay or nondelivery of products. If in any circumstances the Company tenders late delivery and the Purchaser has accepted the products, payment shall be made in accordance with Clause 4 above.
8. Each delivery shall be regarded as a separate contract and failure of any delivery shall not affect the contract as to any other delivery.
9. Risk in any products supplied by the Company to the Purchaser shall pass when such products are delivered to the Purchaser or into custody on the Purchaser’s behalf but ownership of such products is retained by the Company until the Company receives full payment for those products. Until such payment in full is received via cleared funds, the Purchaser shall hold the products as bailee only for the Company.
11. The Company may in its absolute discretion engage qualified Solicitors and/or licensed debt collection agencies to recover the amount from the Purchaser. The Purchaser agrees in consideration of the granting of credit to the Purchaser pursuant to this Agreement, to reimburse the Company all such fees, charges, legal fees, expenses and costs including those of an agency licensed under the Commercial and Private Agents Act (as amended) associated with the recovery of the amount due by the Purchaser to the Company from the Purchaser.
12. The Purchaser shall give seven days notice to the Company of any change in its Directors, Shareholders, Proprietor, trading name or partners.
13. It is agreed that if a cheque is not honoured by the Purchaser’s bank due to insufficient funds,
• any bank charges, fees or costs will be reimbursed to the Company;
• the Company shall not be liable to deliver any further goods to the Purchaser until the amount outstanding is paid by the Purchaser; and
• the Company is not liable to extend any further credit to the Purchaser;
14. Unless amended at the time of delivery, the products and quantities shown on each invoice shall be regarded as the true record of the products and unit quantities delivered by the Company to the Purchaser and the Purchaser agrees not to dispute delivery of the said products and unit quantities.
15. The Purchaser shall not deduct or set off any monies from or against the amount shown as due and payable in each invoice submitted by the Company to the Purchaser unless otherwise agreed in writing. Any monies owing to the Purchaser by the Company shall be separately accounted.
16. In the case where the Purchaser is trustee of a trust, then this agreement binds the Purchaser both in its capacity as trustee of the trust and in its own right.
17. The Applicant warrants that the persons’ signatures appearing on the credit application (if applicable) are duly authorised by the Applicant to apply for credit and execute the credit application on behalf of the Applicant.
18. By providing this Account Application Form and in acceptance of the Company’s terms & Conditions, the Purchaser agrees to be bound by the laws of the State of New South Wales, Australia.
GUARANTEE AND INDEMNITY
The Guarantor (which term includes the Guarantor’s executors, administrators, successors and assigns) being the undersigned, confirms having requested Classical Wines Pty Limited, ABN 11 067 439 696 to provide credit to:
(Applicant) pursuant to a credit application made by it to Classical Wines Pty Limited.
1. The Guarantor agrees that if accepted by Classical Wines Pty Limited the attached credit application will be a binding agreement between the Applicant and Classical Wines Pty Limited (Credit Agreement).
2. In consideration of Classical Wines Pty Limited providing credit to the Applicant as requested by the Guarantor, the Guarantor guarantees to Classical Wines Pty Limited:
a. the payment of any monies the Applicant owes or may in the future owe to Classical Wines Pty Limited under the Credit
b. that the Applicant will comply with all of its obligations to Classical Wines Pty Limited under the Credit Agreement and Classical Wines Pty Limited’s terms of trade, as amended by Classical Wines Pty Limited from time to time (Terms of Trade).
3. If the Applicant fails to pay Classical Wines Pty Limited any monies due and payable to Classical Wines Pty Limited in accordance with the Credit Agreement or the Terms of Trade, the Guarantor must pay such monies to Classical Wines Pty Limited immediately upon written demand by Classical Wines Pty Limited.
4. If the Applicant does not comply fully, correctly and on time with its obligations to Classical Wines Pty Limited, the Guarantor is obliged to do so as if the Guarantor was the Applicant, immediately upon written demand by Classical Wines Pty Limited.
5. The Guarantor hereby indemnifies and will keep Classical Wines Pty Limited indemnified from and against any claims, actions, damages, losses, liabilities, costs (including legal costs on a full indemnity basis), expenses or payments which Classical Wines Pty Limited suffers, incurs or is liable for, whether or not contemplated by the parties, as a result of a breach of the Credit Agreement or the Terms of Trade by the Applicant.
6. This guarantee and indemnity is a continuing guarantee.
7. The Guarantor’s liability under this guarantee and indemnity is not affected, waived or discharged by:
a. the insolvency of the Guarantor (or any of them if there is more than one) or of the Applicant, or by Classical Wines Pty Limited releasing any other person as guarantor or the Applicant or giving the Guarantor or the Applicant time to pay or to perform any obligation; or
b. any inaction by Classical Wines Pty Limited in exercising Classical Wines Pty Limited's rights either against the Applicant or the Guarantor (or of any of them if there is more than one).
8. The Guarantor is aware that assets owned by the Guarantor may end up being taken to satisfy the Guarantor's liability under this guarantee and indemnity.
9. If there is more than one Guarantor, their liability under this guarantee is joint and several.
10. Classical Wines Pty Limited is entitled to recover against the Guarantor without first having taken steps to recover against the Applicant or any other Guarantor.
11. A person who signs this guarantee and indemnity as Guarantor is bound by it even though someone else who is named as a Guarantor or who was intended to give a guarantee or other security in respect of the Credit Agreement: a. does not give such a guarantee or security;
b. does not sign it properly;
c. is not bound by it or a provision of it or has no power to sign it; or
d. stops being liable under it or is discharged from liability under it.